Protecting Clients From Game Playing by the Defense

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December 28, 2020
Edward Smith

Game Playing Has Always Been a Strong Defense Strategy

As in chess, control over defense game-playing is an essential part of litigation. Defense lawyers often try to upset the cart by using strategies that can change the outcome in a plaintiff’s case. The injured party’s attorney needs to keep an eye out for the emergence of such tactics and ensure that they don’t succeed. Let’s take a look at these tactics made worse by a pandemic and learn how the course of a trial’s progress can be controlled. 

Categories of Discovery Abuse

There are three areas that are frequently affected by abusive defense tactics. They are:

  • Insurance and other information: This includes information about the defendant’s insurance coverage, incident reports that the defense holds, and statements made to them by various witnesses. It also includes sub rosa (confidential) information, which is Latin for under the rose. In the law, a rose is a symbol of secrecy. Even repair records fall under this category.
  • Depositions: Today, more than ever, there is a need for remote depositions, and despite a new law that allows for this, defense lawyers often refuse to comply.
  • Defense requests: Many times, requests for discovery are excessive or abusive. It is here that plaintiff lawyers must file motions to protect their clients.

Hiding Relevant Insurance Policy Information

In California, there are ways for attorneys to gather information from defendants about their insurance coverage. They are designed to be simple and easy to use. These form interrogatories request all insurance policies the defendant has, including both their main policy or additional liability coverage or even medical protection. 

In the past, the plaintiff attorney’s emphasis was on finding additional coverage or an umbrella policy. However, in many cases, a defendant’s lawyer lies about or misrepresents the extent of their client’s coverage. 

Rideshare Companies and Game Playing About Insurance Coverage

Today, rideshare companies such as Uber or Lyft are notoriously secretive about their insurance coverage. They do not provide requested information without pressuring the plaintiff’s attorneys to agree to a protective order. Then, they still refuse to release the complete information, which can tie the hands of the plaintiff’s lawyer. 

The plaintiff’s legal counsel should refuse to agree to a protective order and instead file a motion to compel, which makes the defendant’s lawyers provide all insurance information. The bottom line here is that insurance policy information is an important aspect of the plaintiff’s case and should not be denied. Despite this, the defendant’s attorney may argue that the information is not relevant at this point in the case. 

How to Tackle This Problem 

Plaintiff’s counsel should be aggressive on this point. Meeting and talking to opposing counsel is an important part of doing that, as is filing the motion to compel the defense to release the information. The timeline for filing a motion to compel must precede the defense filing a protective order. Under the Code of Civil Procedure, the court should demand that the defense provide all types of information in addition to insurance declaration pages. 

Sometimes, it is important to ask for full policies. If the defense refuses to do this, it is essential to ask for court sanctions since this information must be provided under the law. By doing this, the plaintiff’s lawyer is saying that they will not be bullied or dissuaded by game playing, which can affect the outcome of their client’s case. 

Game Playing and Witness Statements

Many times, the defense refuses to produce witness accounts of an accident as well as incident reports. Their argument is that both are communications that fall under attorney/client privilege. In addition, they sometimes argue that materials are protected by the work-product doctrine that was prepared prior to and for litigation. In reality, although some incident reports might fall under a protective category, the majority do not. 

To oppose this defense action, it is vital to obtain the privilege log, which holds that certain documents or items are privileged and keeps them from being presented in a civil lawsuit. By doing this, the plaintiff’s attorney will learn how the report was obtained and why and who was present when it occurred. 

Viability of Attorney/Client Privilege

Attorney/client privilege is only viable if the lawyer is present. Again, it is important to file a motion to compel as soon as possible since these documents must be orchestrated by an attorney or by their immediate direction. If that didn’t happen, it is not a privileged document.

 Types of reports that are not privileged include:

  • Witness accounts that were not requested are not privileged. This includes any communication between individuals or the defendant and a witness if an attorney isn’t present.
  • Investigations that were made prior to when litigation began without an attorney present are not privileged.
  • Diagrams or pictures should be available for the plaintiff to examine. If not, this would necessitate a motion to compel because it would be prejudicial to the plaintiff.

Defense May Use Altered Surveillance Evidence 

Today, defense attorneys often use any means possible to obtain surveillance videos. These videos can be altered to establish false implications, such as additional information about the plaintiff and the severity of their injuries. Although attorneys do not actively gather this evidence, the defense might argue that it is at the discretion of the attorney and covered under the work-product doctrine. Because of this, the defense will say it is protected. 

In order to defend against defense arguments that it can use any surveillance material at trial, the plaintiff should demand that they receive the unedited footage in its original form. Also, the plaintiff’s attorney should be able to question investigators under oath. If the defense fails to identify and provide information about all the investigators along with all the unedited material, a motion to compel can be filed. 

Once the investigator’s identity has been given, a deposition can be taken, including obtaining all unedited files. If the defense fails to comply with any of these valid requests, this denial can be used to exclude the witness during the trial. That is because it denies the plaintiff the right to a fair trial.

Repair Records

It is necessary for a plaintiff’s attorney to analyze the cause of injuries in an accident. Such records include traffic reports, location of the accident, and photos of the vehicles involved. They also include photos of injuries the person suffered and any repairs performed on the vehicles. 

Many times, the defense fails to provide repair records and vehicle photos because they believe that property damage is not part of the case. There is nothing further from the truth. Damage to the vehicle shows the impact area that would also affect the occupants inside. These records help in showing how the accident happened. Even though photographs of the crash may not indicate significant damage, repair records can show otherwise. 

In order to get the defense to provide repair records and photos, filing a motion and sanctions may be required. Many times, the defense believes the plaintiff’s attorney will not follow through, and waiting too long may be detrimental to the case. 

Remote Depositions

Prior to the pandemic and order for quarantine, defense lawyers often denied active participation in a remote deposition. In response to the pandemic, Emergency Rule 11 was enacted. This rule says that individuals who are deposed can be in a different location from those handling the deposition. The rule is scheduled to run for three months after a state of emergency has been declared. 

This was bolstered by efforts of the California legislature that made remote depositions part of the norm with the passage of Code of Civil Procedure section 2025.310. Many defense attorneys ignore this rule and refuse to participate in remote depositions. 

Ways in Which a Plaintiff’s Attorney Can Counter This Argument

In order to proceed with a remote deposition, the plaintiff’s attorneys can do the following:

  • Protective orders: In the event the defense demands an in-person deposition and the plaintiff’s attorney feels it is not practical or within the confines of the law, it is possible to obtain a protective order that the deposition should be done remotely. 
  • Compel remote deposition: Extending the deadline for a deposition is no longer feasible in light of the pandemic. The judge might include sanctions against the defense if the plaintiff’s attorneys ask for it.
  • Depose your client yourself: If the defense refuses to do a remote deposition, Section 2025.010 of the Code of Civil Procedure permits the attorney to depose their own client. 

Remember that the defense is using a game-playing tactic when they refuse to perform a remote deposition. 

Abusive Requests by the Defense

Many times, defense attorneys request information from the plaintiff that is both unnecessary and difficult with which to comply. An example of this is defense attorneys who make hundreds of such requests in an uncomplicated car accident. The defense may also make requests for the plaintiff’s medical history, including conditions that are not pertinent to the accident. This might also include psychiatric treatment, information about finances, employment, or school records. If the plaintiff’s attorney feels that the defense is trying to muddy the waters, they can file a protection order. 

Subpoenas Filed by the Defense

On occasion, defense attorneys will file subpoenas to mental health and medical providers as well as remote employers to gain information. They do this as a backdoor way of obtaining the information since it might include drug abuse, poor school activity, or mental problems. The inclusion of this material may be challenged at the time of trial through a motion in limine. However, it is better to watch for it upfront since there is no guarantee at the time of trial.

Use of a Discovery Mediator

The above disputes may be helped by a discovery mediator. It is also possible to ask the courts to review the information before it is provided. Remember that the defense in no way has your client’s best interests at heart. 

Protecting Your Client

Obtaining a successful resolution to a case depends on the plaintiff’s injury attorneys aggressively protecting their client. To do this, the attorneys must know about and be vigilant for game-playing tactics. Using motions to compel and protective orders will help the plaintiff’s attorneys keep the defense in their place. 

Sacramento Personal Injury Lawyer

I am Ed Smith, a Sacramento personal injury lawyer. At our firm, we make every effort to protect our clients’ rights. This includes limiting game playing by the defense, which is used to bully the client and muddy the waters in front of the court. 

Contact me for free and friendly advice about your accident and this issue by calling (916) 921-6400 or (800) 404-5400. You can also reach me online

I’ve helped Sacramentans since 1982 with obtaining compensation for their traffic crashes, cases involving wrongful deaths, and all kinds of traumatic injuries.

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